May 14, 2007

Yesterday, on "Fox News Sunday," Chris Wallace invited Rudy Giuliani to clarify what he'd said at the Republican debate on the subject of abortion, that it would be "okay" if Roe v. Wade were overruled and "okay" if it were not. How could be be so "indifferent" on a subject most Americans are so passionate about?

I'm very, very passionate about abortion and the whole issue of abortion. But it leads me to a conclusion that may be different than some, the same as others, which is I oppose it. That's a principle I've held forever, and I'll hold it forever. That's not going to change.

But I also believe that in a society like ours, where people have very, very different consciences about this, it's best for us to respect each other's differences and allow for choice.

So with regard to Roe against Wade, since I'm seeking the presidency of the United States and my view is that there shouldn't be a litmus test on Roe against Wade, it seems to me the best position to take is I don't want a litmus test for judges.

We didn't want Justice Roberts or Justice Alito to answer that question. They both answered that question they would consider it, they would look at it.

I'm going to select strict constructionist judges. They're free to take a look at Roe against Wade, take a look at the limitations. But I believe I should leave it to them to decide that.

WALLACE: But just to revise your answer last week, then, you personally, supporting choice, would not feel it's OK if the Supreme Court...

GIULIANI: What I meant to convey — if I didn't convey it correctly, I'll convey it again. The country could handle it. I mean, the country — we've got a federal system. What would happen is states would make decisions.

We're already doing that with the Hyde amendment. Federal funds for abortion are limited. States make their own decisions.

Wallace is a softball interviewer. He does not push Giuliani with what is a crucial question here. This is what I would have asked: But can't Congress regulate abortion? The Supreme Court just upheld a federal statute limiting abortion. If there can be federal statutes, without federal abortion rights, we could end up with a federal ban on abortions, a federal murder statute. How can you assure us that the states would make the decision?

Here's what Wallace actually asked at this point: "But would you personally be disappointed?" What's that, the old "how does it make you feel" question? What difference does it make if he's "personally ... disappointed"? We're not electing a National Oprah to feel for us.

I don't think it's a question of being disappointed or being happy about it. I think it's a question of not wanting to make this a litmus test for judges, so that a judge feels free to listen to the facts, listen to the arguments, and come to the decision they think is the correct interpretation of the Constitution.

Some strict constructionist judges are going to decide it was wrongly decided. Other strict constructionist judges may give more weight to the precedential value of it, the fact that it's been the law for this length of time.

And if you read Justice Kennedy's opinion for the court in the partial birth abortion ban, you can see the tension there between these two things. And I think the court should be allowed to decide this.

This is the right way to answer the bad question. The key abortion-related job for the President is nominating Supreme Court justices, and he should give us confidence that he will select individuals who deserve and can be trusted with the vast power they will have in their hands.

But again, I would want to say: Yes, about that partial birth abortion ban -- it is a federal statute, applicable in all the states, now, is it? How does that jibe with your enthusiasm for our federal system? And to make it interesting: Will you choose the kind of Supreme Court justices who, like Clarence Thomas, would find significant constitutional limitations on Congress's power? Do you think the Constitution reserves legislative power to the states on the subject of abortion? If Roe were overruled, would you veto any bill that intrudes on this power, whether it limits abortion or grants abortion rights?

Wallace allows Giuliani to go on generically about how one ought to want good judges and not use a "litmus test" about abortion.

I would consider the following about a judge. Are they someone who interprets the Constitution rather than legislates? Are they someone who seeks the meaning of the words of the Constitution?

A decision like Judge Silberman's decision in the D.C. Circuit is the kind of decision I'd point to where he found a constitutional right to bear arms, went way, way back to the framers, to the Federalist Papers, tried to figure out what did they mean when they put those words in the Constitution that the people have a right to bear arms.

That's the kind of judge I would want. I might not agree on every decision they make, but that's the kind of judge I would appoint.

This is safe territory for Giuliani. Pointing to Laurence Silberman's opinion -- which you can read about here -- was a nice touch, a nice way to convey the sense that what you want from a court is pure quality and competence that will allow it operate independently from personal or political opinion.

28 comments:

But can't Congress can regulate abortion? The Supreme Court just upheld a federal statute limiting abortion. If there can be federal statutes, without federal abortion rights, we could end up with a federal ban on abortions, a federal murder statute. How can you assure us that the states would make the decision?

There was no federal ban on abortions before Roe v Wade. And in the state where I live, Oregon, abortion was perfectly legal before Roe v Wade, thank you very much.

But again, I would want to say: Yes, about that partial birth abortion ban -- it is a federal statute, applicable in all the states, now, is it? How does that jibe with your enthusiasm for our federal system?

Are you hitching your wagon to the partial birth abortion star? If so, this is an unusual event for me. It's not often that I come across seeming nonaddicted and psychologically normal women who have had and nurtured babies of their own, who defend the supposed right of others to crush a baby's head as it is being born. You are unique!

I think Giuliani's view is consistent, and in my view preferable to Democrats blank check pro-choice stance or more hard core pro-life stances.

Most Americans would support abortion with many more restrictions then we have now. Such as abortion allowed only before 20 weeks. The problem is that one individual like Giuliani or a few individuals, like the Justices do not know the truth in this matter. Thus, we need the Court to overturn Roe, and let large majorities decide in the various states as to when an unborn child should be granted rights.

The Democratic pro-choice position is wrong because it denies with a straight face that the unborn can be a viable person. This is a sick and immoral position. The hardcore pro-life movement position is wrong because it gives too much weight to unviable fetuses and embryos. This position ignores the reality that abortion is on a different plane than strangling a baby.

Zeb: You are obviously missing my point. The question is whether Congress has the power to regulate abortion, and if it does, after Roe, it could EITHER restrict abortion (as you like it) OR grant abortion rights by statute. The question is the validity of Giuliani's argument that it would be left to the states. I think this is NOT the case because Congress will legislate and the legislation will be constitutional. You think that because it didn't regulate before Roe, it will resist the temptation to act now, after the issue has become so very important to everyone?

And, Zeb, as for partial birth abortion, when it is banned -- as it is -- it only means that the same unborn child has its body parts crushed and ripped off inside the womb. From the perspective of the fetus, that would seem to be more horrible. It is from our perspective that there is deep meaning to the position of the fetus in relation to the cervix. The woman having the abortion is forced to endure the danger of bone splinters from the ripped apart fetus in order to make the American public feel better about an image that the fetus never is aware of as it is killed more gruesomely.

The woman having the abortion is forced to endure the danger of bone splinters from the ripped apart fetus in order to make the American public feel better about an image

This is true, but we also ask our soldiers to use restraint when defending themselves. Ultimately this will lead to more deaths among our soldiers, but reflects better on our society that we are concerned for innocent lives.

Professor Althouse wrote .."you want from a court is pure quality and competence that will allow it operate independently from personal or political opinion."

Not being an attorney, and having worked in a forensic capacity over a twenty-year period, I have been terribly disappointed at the extent and frequency to which the courts have deviated from the above ideal. I have found it to be the exception, rather than the rule and am unsure of how to effectively move the legal system in the direction of greater independence from personal, political, or financial persuasion.

You think that because it didn't regulate before Roe, it will resist the temptation to act now, after the issue has become so very important to everyone?

I am not so sure. I think it is more likely that the Congress will punt on this issue - leaving it up to the states. There would be a large group of representatives in the middle arguing that it is a state issue, and therefore, would be opposed to any federal legislation. It will never make it out of committee. Passing the Partial Birth abortion bill was different because almost all the state legislatures would have supported a similar law and most polls favored a ban by wide margins. Abortion restrictions will be much more divisive.

This is true, but we also ask our soldiers to use restraint when defending themselves. Ultimately this will lead to more deaths among our soldiers, but reflects better on our society that we are concerned for innocent lives.

We always suspected that Democrats didn't care about federalism, we are learning that Republicans don't either.

I would agree with you on that. The politicians only seem to care about federalism when it supports their policy goals. The partial birth abortion ban should be struck down on federalism principles. However, I seem to recall that the federalism argument was not made to the court in the latest decision.

... we need the Court to overturn Roe, and let large majorities decide in the various states as to when an unborn child should be granted rights.

If we are going to talk about abortion, can we at least use the correct terms? For the first 8 weeks after conception, it's called an embryo. Thereafter, until birth, it's called a fetus. "Unborn child" is a contradiction in terms.

Also, abortion is not "killing babies." Killing infants is called "infanticide" and is strictly illegal.

However, I seem to recall that the federalism argument was not made to the court in the latest decision. Some of the judges discussed it at oral arguments but you are right it wasn't "properly" presented. That said if republican legislators (or the President) had any concern for the federalism implications they sure hid them.

You're right that the Supreme Court did not address the federalism issue because it wasn't raised by the parties. Although I think it wasn't raised because it was so obviously a losing argument, I was careful writing this post to avoid asserting that the court had decided the issue. It could be raised in the future, but it is very unlikely that a majority will reject congressional power.

Ann's question about whether a SCOTUS decision overruling Roe/Casey would really return the issue to the state legislatures, as Giuliani says, can't be answered in the abstract, for two reasons. First, as long as Roe is the law, there is no question about Congress's power to regulate abortions. If the Constitution empowers the SCOTUS to impose federal limits on state regulation of abortion, the same provisions of the Constitution necessarily empower Congress to regulate the same activity. But we're imagining a world in which Roe has been overruled, without knowing the grounds on which that imagined result was reached. Those grounds might undermine the case for Congressional jurisdiction, just as the existence of Roe/Casey requires the opposite conclusion. Of course, Roe/Casey could be overruled on narrower grounds, and in all events nothing the SCOTUS does about Roe/Casey is likely to eliminate potentially independent Constitutional bases for Congressional regulation -- the Commerce Clause being the most likely. But a decision overruling Roe/Casey is quite likely to effectively de-federalize the entire issue, even if it does not constitutionally foreclose that result.

The reason is that, quite apart from the constitutional issues, the political reality is that the federal partial birth abortion ban was adopted precisely because state statutes on the same subject had been struck down on Roe/Casey grounds. Ann's comment that the federal ban may make matters medically worse misses the political point of the federal ban: by highlighting an abortion procedure that is literally minutes from infanticide, the ban not only generated wide public support for a legislative limit on abortion but also stripped bare the pretensions underlying Roe/Casey. Roe/Casey is unlikely to be overruled unless a majority of the Court reaches the conclusion that its abortion jurisprudence was illegitimate, in the same sense that the Court eventually reached that conclusion about Plessy and Lochner. In a world where Roe/Casey were overruled, the political argument for federal regulation of abortion would go with it. That wouldn't preclude a future Congress from marching into the abortion wilderness on its own. But politicians are exquisitely attuned to self preservation, and on an issue like this, the needed majorities are unlikely to stray too far from public consensus. While a state legislature in, say, Idaho may see a different consensus than the state legislature in Massachusetts, Congress is unlikely to do anything that is out of step with public sentiment on the issue nationally.

While Guiliani's answers will not please purists at either end of the abortion issue, I don't think his views will be controversial with the rest of the voting public. By the same token, when he talks of "strict constructionist judges," I think he may have a different ideal in mind than Ann. Ann says: "what you want from a court is pure quality and competence that will allow it operate independently from personal or political opinion." No one has a problem with "quality and competence" in judges. But Roe/Casey puts a fine point on the notion that judges should "operate independently from personal or political opinion." The entire point of "strict constructionism" is that judges must be especially careful not to read their own "personal or political opinions" into the Constitution. To put it bluntly, there is no principled argument for ceding fundamental moral or political choices to the judiciary where, as here, the Constitution has nothing specific to say on the subject. A judge who takes that view is unlikely to make up things like Roe/Casey, even if he is more likely to take the stare decisis issue quite seriously.

I think that Giuliani's answer to these abortion questions were sincere, in that they convey what he actually thinks about the issue; principled, in that the make constitutional sense; and politic, in that they will appeal to the broad middle. Not a bad result when dealing with a subject like abortion.

Although I think it wasn't raised because it was so obviously a losing argument, I was careful writing this post to avoid asserting that the court had decided the issue. It could be raised in the future, but it is very unlikely that a majority will reject congressional power.

I strongly doubt that a majority of the court would reject congressional power. I think it is possible that one Justice (namely Thomas) might reject congressional power. If he were to, it would result in a 5-4 vote to overturn the ban though there would be no "opinion" to give guidance.

I think the issue wasn't raised (in addition to it being one of the weaker arguments) is that abortion proponents or their allies don't want to see the courts diminish congressional powers and abortion opponents were sheepish to acknowledge that what they were doing was intruding on states rights.

But even aside from the "legal" analysis of federalism there is a political side to federalism as well. Just because the courts say Congress can legislate on a matter does not mean that Congress "should" regulate the matter. In particular, politicians shouldn't say "states should decide" out of one side of their mouths while deciding for states out the other side.

Richard Dolan: "Ann's question about whether a SCOTUS decision overruling Roe/Casey would really return the issue to the state legislatures, as Giuliani says, can't be answered in the abstract, for two reasons. First, as long as Roe is the law, there is no question about Congress's power to regulate abortions. If the Constitution empowers the SCOTUS to impose federal limits on state regulation of abortion, the same provisions of the Constitution necessarily empower Congress to regulate the same activity."

No, it doesn't. That is not a correct statement of the law! If you are attempting to describe Congress's power under §5 of the 14th amendment, you are not even close.

My understanding of Roe, is that since it supposedly flows from constitutional rights, is that it limits the scope of regulation which can be made on abortion practices. This would apply to all levels of government--state, federal and local. There is nothing in Roe which specially empowers the federal government.

It would seem that any state could have passed an identical law and been able to defend it more easily than the feds (in defense of their ban). The feds would have to defend on states-rights grounds as well as conformity to Roe, while a state would only have to conform to Roe.

Politically, I don't think Congress would bother much with anti-abortion laws if Roe were thrown-out. The current laws which prevail are more pro-choice than most states would have--if they were able to make their own laws. Only bans on very unpopular practices (such as partial birth abortion) elicit enough popularity to get Congress behind. There just wouldn't be enough incentive to make federal laws when most state laws begin to reflect the will of the people who live them.

I guess I'm like him--I don't have a thoroughly consistent philosophical theory on abortion. I too feel passionately that it's wrong, but I also don't think the state should interfere except in the grossest of circumstances, like partial birth abortion, or should pay for abortion. A new law would not stop abortion--it didn't before Roe v. Wade. It would be nice if only wise, moral, mature people got pregnant, but that's not gonna happen. What do we in a free society do in the meantime?

Ann: Yes, I was thinking about Section 5, and more generally about the primacy of Congress in the constitutional scheme of things (at the textual level, at any rate) vis-a-vis the SCOTUS. But I didn't look (and still haven't) at any of the caselaw under Section 5. But I'm not surprised that it's developed in a direction at variance with the constitutional text. Section 5 says that Congress "shall have power to enforce ... the provisions of this article," while Roe/Casey (presumably) turn on the idea that state regulation of abortion can abridge a Due Process/Equal Protection right secured by Section 2 of the same Amendment. If that is so, I don't see the argument that Congress lacks the constitutional competence to pass a law "enforc[ing]," in the words of Section 5, the same federally protected right granted by "this article" that the SCOTUS claims to have enforced in Roe/Casey.

In all events, to imagine SCOTUS overruling Roe/Casey is to imagine a constitutional revolution. Roe/Casey have taken on a life larger than the particular constitutional issues in play. If that revolution ever comes, it is quite likely to be rooted in a very different view of the role of the SCOTUS in second-guessing legislative judgments, and thus to sweep away more than just Roe/Casey. (That's the reason why I don't think Roe/Casey will ever be formally overruled, even if the federal abortion right is ultimately whittled down to a much smaller core.) There's really no predicting from this vantage what that revolution would entail or where it would end.

Richard, they aren't "enforcing" the right if they are restricting abortion in a way that happens not to conflict with the right. If they were doing something to stop the states from violating the right, they'd be enforcing it. Trust me, I've read the case law, and I've taught it for as long as the current doctrine has been in effect (i.e., more than a decade).